SSRN Author: Stephen E. HendersonStephen E. Henderson SSRN Contenthttp://www.ssrn.com/author=106990
http://www.ssrn.com/rss/en-usSat, 16 Jul 2016 01:02:29 GMTeditor@ssrn.com (Editor)Sat, 16 Jul 2016 01:02:29 GMTwebmaster@ssrn.com (WebMaster)SSRN RSS Generator 1.0REVISION: LAWn Signs: A Fourth Amendment for Constitutional CurmudgeonsWhat is the constitutional significance of the proverbial "keep off the grass" sign? This question — asked by curmudgeonly neighbors everywhere — has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding — and control over — access to property, "the people" may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every stake in the ground, ordinary citizens can proclaim their expectations and remind everyone that the Fourth Amendment is meant to apply to ordinary people in everyday circumstances. http://www.ssrn.com/abstract=2742908
http://www.ssrn.com/1512897.htmlFri, 15 Jul 2016 05:10:46 GMTREVISION: Teaching Criminal Procedure: Why Socrates Would Use YouTubeIn this invited contribution to the Law Journal’s annual Teaching Issue, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, in service of two concrete goals. One, we employ dialogue to describe the "nuts and bolts" of teaching Criminal Procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on our Crimprof Multipedia service. We organize its benefits into four “h’s” (humor, humanization, headlines, and hypotheticals), and we give several examples of each for a topic that pervades criminal procedure: racial (in)justice. http://www.ssrn.com/abstract=2637408
http://www.ssrn.com/1500905.htmlWed, 01 Jun 2016 08:38:25 GMTREVISION: Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras)When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different from civilian equivalents that find their way into government hands, whether it be tomorrow's drone flight, or today's record of all of our internet activity compiled by our internet service provider, or a current record of all of our movements compiled by our mobile phone company? What of targeted time ... http://www.ssrn.com/abstract=2643613
http://www.ssrn.com/1495246.htmlTue, 10 May 2016 15:22:38 GMTREVISION: LAWn Signs: A Fourth Amendment for Constitutional CurmudgeonsWhat is the constitutional significance of the proverbial "keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every stake in the ground, ordinary citizens can proclaim their expectations and remind everyone that the Fourth Amendment is meant to apply to ordinary people in everyday circumstances. http://www.ssrn.com/abstract=2742908
http://www.ssrn.com/1476751.htmlTue, 08 Mar 2016 01:28:58 GMTREVISION: Lawn Signs: A Fourth Amendment for Constitutional CurmudgeonsWhat is the constitutional significance of the proverbial “keep off the grass” sign? This question — asked by curmudgeonly neighbors everywhere — has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding — and control over — access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every stake in the ground, ordinary citizens can proclaim their expectations and remind everyone that the Fourth Amendment is meant to apply to ordinary people in everyday circumstances. http://www.ssrn.com/abstract=2742908
http://www.ssrn.com/1476340.htmlMon, 07 Mar 2016 03:15:53 GMTNew: A Rose by Any Other Name: Regulating Law Enforcement Bulk Metadata CollectionIn Other People's Papers, Jane Bambauer argues for careful reform of the Fourth Amendment's third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law — including what I have termed a "limited" third party doctrine — and comparing and contrasting her recommendations to those of the American Bar Association Criminal Justice Standards, this article continues the project of formulating how best to regulate law enforcement access to bulk metadata, focusing on cell-site location. The Standards provide an array of ... http://www.ssrn.com/abstract=2719702
http://www.ssrn.com/1463087.htmlSat, 23 Jan 2016 07:12:11 GMTREVISION: After United States v. Jones, After the Fourth Amendment Third Party DoctrineIn United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.
More detail:
United States v. Jones, in which the Court unanimously held that month-long Global Positioning System (GPS) tracking of a vehicle constitutes a Fourth Amendment search, did not in itself tell us much. The Government took an egregious position, and therefore lost nine to zero. The Court now applies a resurrected trespass-based conception of search, but we know ... http://www.ssrn.com/abstract=2195274
http://www.ssrn.com/1442876.htmlSat, 07 Nov 2015 12:48:25 GMTREVISION: Real-time and Historic Location Surveillance after United States v. Jones: An Administrable, Mildly Mosaic ApproachIn United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance is for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, the Supreme Court unanimously rejected that position. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting proper judicial restraint in this nuanced and difficult area. Using the newly enacted American Bar Association (ABA) Standards on Law Enforcement Access to Third Party Records, this Article develops a regulatory regime for law enforcement visual surveillance, technologically enhanced location surveillance, and access to historic location records (e.g., cell site data). The ... http://www.ssrn.com/abstract=2195289
http://www.ssrn.com/1442873.htmlSat, 07 Nov 2015 12:46:18 GMTREVISION: Regulating Drones Under the First and Fourth AmendmentsThe FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative to understand the constitutional restraints on public flight and constitutional protections afforded private flight.
Unfortunately, while there are a few Fourth Amendment precedents in manned aviation, they are mired not only in 1980s technology but also in the 1980s third party doctrine, and therefore do not reflect more ... http://www.ssrn.com/abstract=2574378
http://www.ssrn.com/1440353.htmlThu, 29 Oct 2015 17:20:15 GMTREVISION: Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras)When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those records not only store our past, but thanks to data mining and big data, in many circumstances they are eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different from civilian equivalents that find their way into government hands, whether it be tomorrow’s drone flight, or today’s record of all of our internet activity compiled by our internet service provider, or a current record of all of our movements compiled by our mobile phone company? What of personalized ... http://www.ssrn.com/abstract=2643613
http://www.ssrn.com/1420013.htmlSat, 15 Aug 2015 10:33:43 GMTREVISION: Teaching Criminal Procedure: Why Socrates Would Use YouTubeIn this invited contribution to the Law Journal’s annual teaching volume, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, but in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching criminal procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on our Crimprof Multipedia service. We organize its benefits into four “h’s” (humor, humanization, headlines, and hypotheticals), and we give several examples of each for a topic that pervades criminal procedure: racial (in)justice. http://www.ssrn.com/abstract=2637408
http://www.ssrn.com/1416551.htmlSat, 01 Aug 2015 08:19:32 GMT